Citation Nr: 1326199 Decision Date: 08/16/13 Archive Date: 08/26/13 DOCKET NO. 08-04 053 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon THE ISSUES 1. Entitlement to an initial rating in excess of 10 percent for an anterior cruciate ligament (ACL) tear with degenerative changes of the right knee. 2. Entitlement to an initial rating in excess of 10 percent for residuals of a left elbow injury. REPRESENTATION Appellant represented by: Oregon Department of Veterans' Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Andrew Ahlberg, Counsel INTRODUCTION The Veteran served on active duty from July 1980 to October 1980, and from October 2003 to October 2005. He also served as a member of the United States Army National Guard, with various periods of unverified active duty for training and inactive duty training through October 2003. This appeal to the Board of Veterans' Appeals (Board) arose from an April 2006 rating decision in which the RO, inter alia, granted service connection and assigned an initial 10 percent rating for an ACL tear with degenerative changes of the right knee and granted service connection and assigned an initial 0 percent (noncompensable) rating for residuals of a left elbow injury. Each award of service connection and compensation were made effective October 15, 2005. The Veteran filed a notice of disagreement in June 2006. The RO issued a statement of the case (SOC) in January 2008. The Veteran filed a substantive appeal (via a VA Form 9, Appeal to Board of Veterans' Appeals) in February 2008. In a March 2012 rating decision, the RO awarded a higher, initial 10 percent disability rating for residuals of a left elbow injury, also effective October 15, 2005. Because the Veteran disagreed with the initial ratings assigned following the awards of service connection for his ACL tear with degenerative changes of the right knee and for residuals of a left elbow injury, the Board has characterized these claims in light of the distinction noted in Fenderson v. West, 12 Vet. App. 119, 126 (1999) (distinguishing initial rating claims from claims for increased ratings for already service-connected disability). Moreover, although the RO granted a higher, 10 percent rating for the left elbow disability, inasmuch as higher ratings for this disability are available, and the Veteran is presumed to seek the maximum available benefit for a disability, the claim for a higher rating for the service connected left elbow disability remains viable on appeal. Id; AB v. Brown, 6 Vet. App. 35, 38 (1993). In June 2012, the Veteran testified during a Board hearing before the undersigned Veterans Law Judge at the RO; a transcript of that hearing is of record. In October 2012, the Board remanded the higher rating claims on appeal to the RO via the Appeals Management Center (AMC) in Washington, D.C, for further action, to include additional development of the evidence. After completing the requested development, the RO continued to deny each higher rating claim (as reflected in a June 2013 supplemental statement of the case (SSOC)), and returned these matters for further appellate consideration. The development conducted pursuant to the October 2012 ultimately resulted in the grant of an additional claim previously on appeal, entitlement to service connection for a low back disability; as such, the only issues remaining on appeal are as listed on the Title Page. A review of the Virtual VA claims processing system reveals VA treatment records dated through December 10 2012; the June 2013 SSOC notes review of these records. FINDINGS OF FACT 1. All notice and development action needed to fairly adjudicate each claim on appeal have been accomplished. 2. Since the October 15, 2005, effective date of the award of service connection, the Veteran's ACL tear with degenerative changes of the right knee has resulted in reduced range of flexion to, at worst, 110 degrees; full extension; and no locking; ankylosis; subluxation or instability; impairment of the tibia or fibula; genu recurvatum; or dislocation or removal or the semilunar cartilage. 3. The Veteran is right hand dominant. 4. Since the October 15, 2005, effective date of the award of service connection, residuals of a left elbow injury include complaints of pain and weakness with no evidence of limitation of flexion or extension of the left forearm; there has been no evidence of ankylosis, flail joint or joint fracture, nonunion or malunion of the radius or ulna, or loss of supination or pronation. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 10 percent for an ACL tear with degenerative changes of the right knee are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.40, 4.45, 4.71a, Diagnostic Codes (DCs) 5003, 5257, 5260, 5261 (2012). 2. The criteria for an initial rating in excess of 10 percent for residuals of a left elbow injury are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.40, 4.45, 4.71a, 4.69, DC 5206 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Due Process Considerations The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). The notice requirements under the VCAA essentially require VA to notify a claimant of any evidence that is necessary to substantiate the claim(s), as well as the evidence that VA will attempt to obtain and which evidence he or she is responsible for providing. See, e.g., Quartuccio v. Principi, 16 Vet. App. 183 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)). As delineated in Pelegrini v. Principi, 18 Vet. App. 112 (2004), after a substantially complete application for benefits is received, proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim(s); (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim(s), in accordance with 38 C.F.R. § 3.159(b)(1). The Board notes that, effective May 30, 2008, 38 C.F.R. § 3.159 has been revised, in part. See 73 Fed. Reg. 23,353 - 23,356 (April 30, 2008). Notably, the final rule removes the third sentence of 38 C.F.R. § 3.159(b)(1), which had stated that VA will request that a claimant provide any pertinent evidence in his or her possession. VA's notice requirements apply to all five elements of a service connection claim: Veteran status, existence of a disability, a connection between a Veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In rating cases, a claimant must be provided with information pertaining to assignment of disability ratings (to include the rating criteria for all higher ratings for a disability), as well as information regarding the effective date that may be assigned. Id. VCAA-compliant notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (here, the RO, to include the AMC). Id.; Pelegrini, 18 Vet. App. at 112. See also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). However, the VCAA notice requirements may, nonetheless, be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Id. A February 2006 pre-rating letter provided pertinent notice to the Veteran in connection with what were then claims for, as pertinent to the current appeal, service connection for a right knee and left elbow disability. That letter indicated what information and evidence was needed to substantiate each claim, as well as what information and evidence must be submitted by the Veteran and what information and evidence would be obtained by VA. After the award of service connection for right knee and left elbow disabilities, and the Veteran's disagreement with the initial ratings assigned, a November 2008 letter provided him with general information pertaining to VA's assignment of disability ratings and effective dates, the timing and form of which suffices, in part, for Dingess/Hartman The November 2008 letter informed the Veteran of some applicable criteria for higher ratings for knee and elbow/forearm disabilities, and the March 2010 SSOC set forth additional criteria for higher ratings for knee disabilities. An even more thorough listing of numerous additional criteria for higher ratings for both service connected disabilities at issue was set forth in the March 2012 SSOC. After the issuance of the cited notice, and opportunity for the Veteran to respond, the June 2013 SSOC reflects readjudication of the claims for higher initial ratings. Cf. Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as in an SOC or SSOC, is sufficient to cure a timing defect). Notwithstanding the above, to the extent the Veteran may not have been provided with the complete criteria for rating the disabilities at issue in a notice letter, or that the notice letters are otherwise considered inadequate or not timely, on these facts, the absence of such notice is not shown to have prejudiced the Veteran. As explained below, there is no indication that there is any outstanding evidence pertinent to the claims. Also, pertinent notice consistent with Pelegrini and certain requirements of Dingess/Hartman has been provided. Moreover, because both claims for higher ratings are being denied, no other rating, or effective date, is being, or is to be, assigned; hence, there can be no prejudice to the Veteran under the notice requirements of Dingess/Hartman. The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matters herein decided. Pertinent medical evidence associated with the claims file consists of reports from VA examinations, as well as the Veteran's VA treatment records (to include the VA examination and records requested by the Board in its October 2012 remand). See Stegall v. West, 11 Vet. App. 268 (1998) (holding that a remand confers on the claimant, as a matter of law, the right to compliance with the remand order); see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Also of record and considered in connection with the appeal are various written statements provided by the Veteran. With regard to the Board hearing in June 2012, the Veteran was provided an opportunity to set forth his contentions during the hearing before the undersigned Veterans Law Judge. In Bryant v. Shinseki, the Unite States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) requires that the RO Decision Review Officer or Veterans Law Judge who chairs a hearing to fulfill two duties: (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010). Here, during the June 2012 hearing, the undersigned Veterans Law Judge enumerated the issues remaining on appeal. Also, information was solicited regarding the nature and severity, or frequency, as appropriate, of the Veteran's right knee and left elbow symptoms, as well as concerning his current treatment providers. Therefore, not only were the issues "explained . . . in terms of the scope of the claims for benefits," but "the outstanding issues material to substantiating the claims," were also fully explained. Id. at 497. As such, the Board finds that, consistent with Bryant, the undersigned Veterans Law Judge complied with the duties set forth in 38 C.F.R. 3.103(c)(2), and that Board hearing was legally sufficient. The Board also finds that no additional RO action to further develop the record in connection with either claim remaining on appeal, prior to appellate consideration, is required. In summary, the duties imposed by the VCAA have been considered and satisfied. Through various notices of the RO/AMC, the Veteran has been notified and made aware of the evidence needed to substantiate these claims, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. There is no additional notice that should be provided, nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection with either claim. Consequently, any error in the sequence of events or content of the notice is not shown to prejudice the Veteran or to have any effect on the appeal. Any such error is deemed harmless and does not preclude appellate consideration of the matters herein decided, at this juncture. See Mayfield, supra, (rejecting the argument that the Board lacks authority to consider harmless error). See also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). II. Analysis The Board notes that it has reviewed all of the evidence of record, to include in the Virtual VA claims processing system, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence as appropriate and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claims. When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court held that an appellant need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail. The Court has also stated, "It is clear that to deny a claim on its merits, the evidence must preponderate against the claim." Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert. Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. A Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, where, as here, the question for consideration is entitlement to a higher initial rating assigned following the grant of service connection, evaluation of the medical evidence since the effective date of the grant of service connection and consideration of the appropriateness of 'staged ratings' (assignment of different ratings for distinct periods of time, based on the facts found) is required. Fenderson, 12 Vet. App. at 126. Each following analysis is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. Degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate codes for the specific joint or joints involved. If the limitation of motion is noncompensable, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added, under 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a, DC 5003. When evaluating musculoskeletal disabilities, VA may, in addition to applying schedular criteria, consider granting a higher rating in cases in which functional loss due to limited or excess movement, pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7 (1996). A. Right Knee Standard range of knee motion is from zero degrees (on extension) to 140 degrees (on flexion). See 38 C.F.R. § 4.71, Plate II. Slight recurrent subluxation or lateral instability of a knee warrants a 10 percent rating under DC 5257. A 20 percent rating requires moderate recurrent subluxation or lateral instability, and a 30 percent evaluation is warranted for severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a. VA's General Counsel has held that a claimant who has arthritis and instability of the knee may be rated separately under DCs 5003/5010 and 5257, respectively. VAOPGCPREC 23-97; 62 Fed. Reg. 63,604(1997). In VAOPGCPREC 9-98, 63 Fed. Reg. 56,703 (1998), the VA General Counsel further explained that, to warrant a separate rating, the limitation of motion need not be compensable under DC 5260 or 5261; rather, such limited motion must at least meet the criteria for a zero (0) percent rating. Under DC 5260, a 10 percent is warranted where flexion is limited to 45 degrees. A rating of 20 percent is warranted where flexion is limited to 30 degrees and a rating of 30 percent is warranted were flexion is limited to 15 degrees. 38 C.F.R. § 4.71a. Under DC 5261, a 10 percent rating is warranted where extension is limited to 10 degrees and a 20 percent rating is warranted where extension is limited to 15 degrees. A rating of 30 percent is warranted where extension is limited to 20 degrees while a 40 percent rating is warranted where extension is limited to 30 degrees. A 50 percent is warranted where extension is limited to 45 degrees. 38 C.F.R. § 4.71a. The VA General Counsel has held that separate ratings under 38 C.F.R. § 4.71a, DCs 5260 and 5261 may be assigned for limitation of flexion and extension of the same joint. See VAOPGCPREC 9-2004; 69 Fed. Reg. 59,990 (2004). Summarizing the pertinent evidence with the above criteria in mind, the Veteran underwent treatment, to include an ACL repair, for the right knee during service. As indicated, service connection was granted for such disability by an April 2006 rating decision. A 10 percent rating under DC 5257 was assigned by this decision. Preceding the April 2006 rating decision was a February 2006 VA examination of the right knee that revealed a barely visible well-healed arthroscopic scar measuring 1-2 centimeters with no keloid formation or tenderness. This examination showed no effusion, crepitus, or instability and range of motion was normal from 0 degrees of extension to full flexion. Repetitive motion did not cause discomfort or decreased motion, and the range of motion was not limited by pain, fatigue, weakness, or lack of endurance and there was a normal gait. The medial and collateral ligaments were intact and the anterior and posterior drawer signs were negative. The McMurray's test was also negative. It was noted that x-rays of the right knee conducted earlier that month had shown minimal patellofemoral compartment degenerative joint disease, and the impression following the examination was status post anterior cruciate ligament repair with residual degenerative joint disease. A September 2007 VA examination of the right knee revealed visible non-tender scars; no gross instabilities in varus and valgus stress testing; no peripatellar tenderness, joint line pain, or popliteal space paine; full strength; and motion testing (done three times) that showed full extension and 130 degrees of flexion with pain at 120 degrees. The assessment following this examination was status post anterior cruciate ligament reconstruction with degenerative joint disease. In consideration of the principles enumerated in DeLuca, the examiner found that there was "reason to believe that [the Veteran] would lose between 15 and 20 degrees of his range of motion, strength, coordination, and fatigability with repetitive movement flares." The examiner stated that the knee condition would not affect work as a full-time student or a sedentary job nor daily activities such as bathing and dressing. He repeated that he found no "instabilities" during the examination and noted that the Veteran wore a knee brace that fit him appropriately. The Veteran was afforded another VA compensation examination to determine the severity of his service-connected right knee disability in February 2010, at which time he reported increased pain in his right knee since his September 2007 examination. He described a chronic dull pain of 3/10 and flareups to 9/10 during physical activity. Pain was said to be relieved by rest, stretching, heat, and ice. He reported that he limited his walking to 1 mile and standing to 3 hours and that he had worn a knee brace with activities for the past 5 years. The Veteran stated for the past two years, he also utilized a cane with activity, and reported that he noticed knee swelling, but not redness or warmth, with activity. He stated that he had stiffness on a regular basis and periods of locking a few times a year. The Veteran reported right knee weakness but described his right knee motion as "okay." It was remarked that the course of the condition had been stable since it onset and that the Veteran had responded well to treatment. In summarizing the symptoms in the right knee at the February 2010 VA examination, giving way, pain, stiffness, weakness, locking episodes, effusions, swelling, and moderate flare-ups of joint disease with activity and cold weather were described, but symptoms were said to not include a deformity, instability, incoordination, decreased range of motion, or episodes of dislocation or subluxation. On physical examination in February 2010, the Veteran was observed to walk with an antalgic gait. There was no evidence of Osgood-Schlatter's disease; masses behind the knee; clicks or snaps; grinding; instability; or patellar or meniscal abnormalities. Crepitus was demonstrated. Range motion testing revealed 110 degrees of flexion and full extension with no objective evidence of pain. Repetitive motion did not result in any objective evidence of pain or any additional limitations. The examiner noted that the Veteran could not walk on his toes due to instability and that he had pain with walking on this heels and performing a deep knee bend. The knee was normal in appearance at the February 2010 VA examination without any evidence of effusion, redness, or warmth and there was no tenderness upon palpation over the lateral joint line, medial joint line, or patella. Strength was full; the Veteran was intact to light touch and pinprick in the lower extremities; and the anterior drawer, posterior drawer, and McMurray tests were negative. X-rays revealed a mildly increased suprapatellar effusion from the February 2006 X-ray and mild degenerative changes, unchanged from that x-ray. The examiner indicated that he expected that the knee pain as described would continue and that Veteran's knee disability had a mild effect on his choice of physical activities but resulted in no other significant effects on usual daily activities. During the June 2012 Board hearing, the Veteran testified that his knee tends to "jump" after about an hour of driving and is "really stiff" in the morning. He described constant pain in the knee of 4/10 and pain to 8/10 during flareups. Swelling was also described by the Veteran and he testified that the disability in the right knee becomes worse at the end of the day. During the most recent VA examination conducted in April 2013 pursuant to the Board remand, the Veteran complained about daily knee pain of 3-4/10 that flared to 7-8/10 with activity. He stated that the pain in the right knee made it hard to sleep and that he takes Vicodin for the pain. The Veteran also described swelling. He reported that the knee was stable but he did report some lack of endurance and giving way due to pain. The Veteran indicated that he used three knee braces and a cane or walking stick on a regular basis. Whereas in the past the Veteran could walk about one half mile, he stated that he could now only walk about two blocks since colon surgery in January 2013. The Veteran reported that, during flare-ups, the knee swells and is hard to bend, which makes it hard for him to do things. Range of motion testing showed 115 degrees of flexion with pain beginning at 75 degrees and full extension with no pain. After repetitive (three times) motion, flexion was to 100 degrees. There was no additional loss of extension with repetitive motion. The examiner noted that repetitive motion resulted (in addition to less flexion than normal) in excess fatigability, pain on movement, instability of station, and disturbance of locomotion. Additional findings from the April 2013 VA examination included tenderness to palpation of the right knee. Muscle testing was normal as was the stability testing of the anterior posterior ligaments. The right knee was also stable with valgus and varus pressure in extension and 30 degrees of flexion. The examiner also indicated that there was no evidence of recurrent patellar subluxation or dislocation and that there were no painful or unstable surgical scars and that the scarring in total did not measure greater than 39 square centimeters. No impairment of the tibia or fibula was demonstrated, but it was indicated that the Veteran had difficulty walking on his toes due to right knee and back pain. The examiner stated that the right knee, back, and left elbow disabilities impacted his ability to work to the extent that manual labor would be precluded but that he would be able to work in a position that would allow him to sit and stand as tolerated. By way of summary, it was noted that there was no evidence of lateral instability or recurrent subluxation in the right knee; that the ACL reconstruction surgery was successful in that it stabilized the knee; that current symptoms of giving way were from pain and lack of endurance and not ligamentous instability; and that flareups of pain would result in flexion being limited to 100 degrees but no loss of extension. Review of VA outpatient reports to include those contained in the Virtual VA claims processing system dated through October 25, 2012, reflect complaints and findings with respect to the right knee that do not in any significant way demonstrate a level of disability that differs from that described on the VA examination reports summarized above. In this regard, the October 25, 2012, clinical report shows the Veteran reporting that he utilized a cane intermittently due to knee pain and that he walked with a "strong steady gait." Applying the pertinent diagnostic codes pertaining to disability of the knees to the clinical evidence set forth above,. With regard to limitation of motion under DCs 5260 and/or 5261, the evidence shows that the Veteran's service-connected right knee disability has been manifested by full extension to zero degrees and flexion to, at worst, 110 degrees. While these findings do not support even the minimum, compensable rating under either diagnostic code, as noted below, given the x-ray evidence of arthritis and the Veteran's complaints of pain and painful motion, a 10 percent rating for compensably limited but painful motion under Diagnostic Code 5003-for one joint-is appropriate. However, no higher rating is assignable. As noted, VA may consider any demonstrated functional loss attributable to pain, weakness, excess fatigability, or incoordination, to include with repeated use or during flare-ups, in conjunction with criteria under the rating formula. See 38 C.F.R. §§ 4.40, 4.45; DeLuca, 8 Vet. App. at 204-7; Johnson, 9 Vet. App. 7. In this regard, the Board recognizes that during each VA examination, the Veteran reported right knee pain; that objective evidence of pain was found on range of motion testing at the most recent VA examination; and that repetitive motion at the most recent VA examination was said to limit result in an additional loss of flexion to 100 degrees. Nonetheless, given the extent of right knee motion demonstrated by the Veteran at his VA examinations, the overall level of disability demonstrated by the Veteran is not commensurate to a loss of flexion to 30 degrees or less or a loss of extension to 15 degrees or less, even after taking reported pain into consideration. In view of the foregoing, even after taking in to account the factors identified in DeLuca, the additional manifestations due to flareups/ repetitive use said to exist by the examiners at the September 2007 and April 2013 VA examination, to include fatigability, pain on movement, loss of strength, instability of station, and disturbance of locomotion, the Board finds that a disability rating in excess of 10 percent cannot be granted for the right knee on the basis of limited motion. The Board also finds that no other diagnostic code provides a basis for any higher rating for the right knee. While separate ratings may be assignable for limited motion and instability (see VAOPGCPREC 23-97, 62 Fed. Reg. 63,604 (1997) and VAOPGCPREC 9-98, 63 Fed. Reg. 56,704 (1998)), the record does not reflect instability of any appreciable degree and there is no objective findings of instability or subluxation in the right knee. As such, an alternative, or additional, rating under Diagnostic Code 5257 is not warranted. Moreover, the post-service radiological studies, treatment notes, and the VA examination reports simply do not reflect objective findings of ankylosis in the right knee, or any suggestion that the Veteran effectively experiences ankylosis of the right knee. As such, an higher rating cannot be assigned on the basis of ankylosis under DC 5256. There also have not been any findings of dislocation or removal of the semilunar cartilage, impairment of the tibia or fibula, or genu recurvatum. As such, an higher rating cannot be assigned under DCs 5258, 5259, 5262, or 5261, respectively. See 38 C.F.R. 4.71a. Finally, the right knee is not shown to involve any other factor(s) that would warrant evaluation of the disability under any other provision(s) of VA's rating schedule. To this end, as the scarring from the ACL surgery was said at the most recent VA examination to not be painful or unstable or involve an area measuring greater than 39 square centimeters, and described on examination prior to that time as being barely visible, well healed, and non tender, increased compensation cannot be assigned on the basis of scarring the right knee under the pertinent diagnostic codes for rating skin disabilities set forth at 38 C.F.R. § 4.118. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). B. Left Elbow The record reflects that the Veteran is right handed. As such, his residuals of a left elbow injury affect his minor extremity. See 38 C.F.R. § 4.69. Normal forearm (elbow) extension and flexion is from 0 to 145 degrees, respectively. Normal forearm pronation and supination is from 0 to 80 degrees and from 0 to 85 degrees, respectively. 38 C.F.R. § 4.71a, Plate I. DC 5206 provides for ratings of 0, 10, 20, 20, 30, or 40 percent where there is limitation of flexion of the minor forearm to 110, 100, 90, 70, 55, or 45 degrees, respectively. 38 C.F.R. § 4.71a, DC 5206. DC 5207 provides for ratings of 10, 10, 20, 20, 30, or 40 percent for limitation of extension of the minor forearm to 45, 60, 75, 90, 100, or 110 degrees, respectively. 38 C.F.R. § 4.71a, DC 5207. Summarizing the pertinent evidence with the above criteria in mind, the Veteran was treated during service, to include undergoing an arthroplasty, for a left elbow injury, and service connection for residuals of this injury was granted by the aforementioned April 2006 rating decision. A noncompensable rating was assigned under DC 5206, effective October 15, 2005. The above rating decision followed a February 2006 VA examination during which the Veteran reported no "chronic" pain but transient pain with certain movements. The examiner sated that the Veteran was "not limited in any way," due to his left elbow problems. The physical examination of the left elbow at that time showed a 4 centimeter scar, 2 millimeters in width, in the posterior aspect of the elbow which was nontender to palpation with no evidence of keloid formation. There was a barely visible 3 centimeter scar in the antecubital fossa area that was nontender. Motion was full with flexion to 145 degrees and extension to 0 degrees. Repetitive motion did not cause discomfort, nor did it result in decreased motion. Left forearm pronation was full to 80 degrees and supination was full to 85 degrees without pain. Strength in the elbow was normal. It was indicated that March 2005 x-rays had shown degenerative changes from an old humeral fracture, and the impression following the examination was status post left elbow arthroplasty with no significant residual symptoms and x-ray evidence of degenerative joint disease. When examined by VA in September 2007, the Veteran reported that he has to "watch things" with repetitive lifting and carrying due to increased left elbow pain. He reported that this did not result in swelling and felt that he had "excellent" strength in the left elbow with no instability, trauma, injurious episodes, falls, mechanical locking, clicking, or popping reported. On examination, there was no swelling, deformity, or discoloration in the left elbow. There were scars in the cubital region and lateral aspect of the left elbow that were nontender to palpation. Motion in the left arm was full and pain free actively and passively from to 0 degrees of extension, 145 degrees of flexion, 80 degrees of supination, and 85 degrees of pronation [it appears that the reading for supination was transcribed for the reading for pronation and vice versa given the maximum ranges of motion for supination and pronation set forth at Plate I.] With strong resistance in biceps flexion, there was minor pain inside the elbow. There were no instabilities to varus or valgus stress testing at the elbow and strength was 5/5 in all planes with no other swelling, deformity, or discoloration. The examiner sated that it was "within reason to believe that [the Veteran] would lose between 10 and 15 degrees of his range of motion, strength, coordination, and fatigability associated with repetitive movement flares." During a February 2010 VA examination, the left elbow was symmetric in appearance with no evidence of effusion, redness, or warmth. There was no tenderness on palpation. Range of motion testing was accomplished three times with no pain or fatigue upon repetition. Strength was 5/5 with elbow flexion and extension bilaterally but was weaker on the left side. The Veteran was intact to light and pinprick touch throughout his upper extremities bilaterally. X-rays conducted in conjunction with this examination showed a few small sub centimeter ossified fragments anterior to the radial neck as well as what appeared to be larger fragments posteriorly. There was no evidence of joint effusion and the joint spaces appeared normal. The February 2010 examiner noted the Veteran's report of increased stiffness and weakness in his left elbow since the September 2007 VA examination. The Veteran described chronic left elbow pain of 3/10 with flareups to 9/10 with physical activity alleviated within hours by rest and heat/ice application. The examiner expected these symptoms to continue. It was noted that, during flare-ups, there was a decrease in flexion of the left elbow of 30 degrees. The examiner concluded that the Veteran's left elbow disability did not have any significant effects on usual daily activities. Following the February 2010 VA examination and as previously noted, in a March 2012 rating decision to 10 percent, effective from the October 15, 2005, award of service connection. It was explained in this rating decision that the increase was based on the findings of minor pain with strong resistance in biceps flexion at the September 2007 VA examination and the weakness shown in the left elbow at the February 2010 VA examination. During the June 2012 Board hearing, the Veteran described stiffness, swelling, and aching in the left forearm just below the elbow. He also reported a burning pain, tightness, diminished motion, and decreased grip strength. During the most recent VA examination of the left elbow in April 2013, the Veteran complained about daily left elbow pain to a lever of 1-2/10 basis with flareups to 7/10 a couple times a week based on activity. A history of weakness and stiffness in the left elbow was described and the Veteran reported that he had not been able to return to the gym to work out due to his left elbow disability. The Veteran stated that he loses strength and "can't lift a lot" during pain flareups. Range of motion testing showed full flexion to 145 degrees and full extension to 0 degrees with no objective evidence of pain with either motion. After repetitive (three times) motion, there was also full extension and flexion. The only functional loss after repetitive use was said by the examiner to be excess fatigability. On April 2013 VA examination of the left elbow, there were additional findings of normal muscle strength and no ankylosis, and there was no flail joint, joint fracture, or impairment of supination or pronation. It was noted that there were no painful or unstable surgical scars in the left elbow and that the scarring therein did not combined to a total area of greater than 39 square centimeters. With respect to the impact of the Veteran's left elbow disability on work, the examiner again stated that the right knee, back, and left elbow disabilities impacted the Veteran's ability to work to the extent that manual labor would be precluded but that he would be able to work in a position that would allow him to sit and stand as tolerated. By way of summary, the examiner remarked that the most recent x-rays of the left elbow conducted in February 2010 did not show degenerative joint disease and that "this is a soft tissue issue [and] not [an] arthritis issue. The examiner also commented that there was a full range of motion with three repetitions. He stated that flareups would likely result in increased pain and lack of endurance but he would not expect there to be any loss of motion. Review of VA outpatient reports, to include those contained in the Virtual VA claims processing system dated through October 25, 2012, reflect complaints and findings with respect to the left elbow that dot not demonstrate a level of disability that differs in any significant way from that described on the VA examination reports summarized above. In this regard, April 23, 2012, and October 25, 2012, clinical reports contained in the Virtual VA claims processing system note the left elbow pain that was previously described to examiners and do not otherwise document that the left elbow disability differs in nature or severity from that demonstrated at the VA examinations. Applying the pertinent legal criteria to the clinical findings relevant to the left elbow set forth above, there has been full left elbow flexion and extension at each examination. As these findings do not warrant assignment of even a compensable rating for the left elbow under DC 5206 or 5207, let alone for a rating in excess of 10 percent, the criteria for a rating in excess of 10 percent based on limitation of flexion or extension of the left forearm are not met. Furthermore, while the Veteran has described flare-ups which the examiners stated in February 2007 would result in between a 10 and 15 degrees loss of range of motion with a loss of strength and coordination; a decrease in flexion of the left elbow of 30 degrees in February 2010; and an increase pain and lack of endurance but no loss of motion in April 2013, there is simply no lay or medical indication that his pain during flareups has been so disabling to result in flexion being limited to 70 or 90 degrees, or extension limited to 75 or 90 degrees so as to warrant increased compensation under DCs 5206 or 5207, respectively. Hence, even with consideration of the sections 4.40 and 4.45 and DeLuca, the record presents no basis for assignment of any higher rating under DCs 5206 or 5207. The Board also finds that no other diagnostic code provides a basis for assignment of a higher rating for the residuals of a left elbow injury. In this regard, it is neither contended nor shown that the Veteran's service-connected residuals of a left elbow injury involve ankylosis; a disability combination of flexion being limited to 100 degrees and extension limited to 45 degrees; flail joint or joint fracture, nonunion or malunion of the of the radius or ulna; or impairment of supination and pronation. As such, a higher rating cannot be assigned under the additional diagnostic codes pertaining to disability of the elbow and forearm codified at 38 C.F.R. § 4.71a, DCs 5205, 5208, 5209, 5210, 5211, 5212, and 5213, respectively. Finally, the left elbow is not shown to involve any other factor(s) that would warrant evaluation of the disability under any other provision(s) of the rating schedule. To this end, as the scarring in the left elbow was said at the most recent VA examination to not be painful or unstable or involve an area measuring greater than 39 square centimeters, and was described at a prior VA examination as being nontender and "barely visible," increased compensation cannot be assigned on the basis of scarring of the left elbow under the pertinent diagnostic codes for rating skin disabilities codified at 38 C.F.R. § 4.118. See Esteban, supra. C. Other Considerations In assessing the severity of each disability under consideration, the Board has considered the Veteran's assertions regarding his symptoms, to include those presented in sworn testimony at the June 2012 hearing before the undersigned, which he is certainly competent to provide. See, e.g., Layno v. Brown, 6 Vet. App. 465, 470 (1994) and Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). However, the criteria needed to support higher ratings are the required medical findings that are within the province of trained medical professionals. See Jones v. Brown, 7 Vet. App. 134, 137-138 (1994). As such, the lay assertions are not considered more persuasive than the objective medical findings which, as indicated above, do not support assignment of a higher rating for either disability pursuant to any applicable criteria at any point pertinent to this appeal. Additionally, the Board finds that at no pertinent point has either disability under consideration been shown to be so exceptional or unusual as to warrant the assignment of any higher rating on an extra-schedular basis. See 38 C.F.R. § 3.321(b)(1) (cited in the January 2008 SOC). The threshold factor for extra-schedular consideration is a finding on the part of the RO or the Board that the evidence presents such an exceptional disability picture that the available schedular ratings for the service-connected disabilities at issue are inadequate. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). See also 38 C.F.R. § 3.321(b)(1); VA Adjudication Procedure Manual, Pt. III, Subpart iv, Ch. 6, Sec. B(5)(c). Therefore, initially, there must be a comparison between the level of severity and the symptomatology of the claimant's disability with the established criteria provided in the rating schedule for this disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned rating is therefore adequate, and no referral for extra-schedular consideration is required. See VAOGCPREC 6-96 (Aug. 16, 1996); Thun v. Peake, 22 Vet. App. 111 (2008). If the rating schedule does not contemplate the claimant's level of disability and symptomatology, and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms" (including marked interference with employment and frequent periods of hospitalization). 38 C.F.R. § 3.321(b)(1). If so, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for completion of the third step: a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extra-schedular rating. Thun, supra. In this case, the Board finds that the applicable schedular criteria are adequate to rate each disability under consideration at all points pertinent to this appeal. The rating schedule fully contemplates the described symptomatology, and provides for ratings higher than that assigned based on more significant functional impairment. Significantly, there is no medical indication or argument that the applicable criteria are otherwise inadequate to rate either the service connected right knee or left elbow disability. Thus, the threshold requirement for invoking the procedures set forth in 38 C.F.R. § 3.321(b)(1) is not met. See Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). "Because the VA disability rating schedule is designed to consider the disabling effect of disabilities separately, no single DC provision will adequately assess the variety of symptoms involved with multiple service-connected disabilities." Johnson v. Shinseki, No. 10-1785, slip op. at 10 (Vet. App. Mar. 27, 2013) (en banc). Thus, as to the question of "whether [38 C.F.R.] § 3.321(b)(1) requires VA to consider multiple service-connected disabilities on a collective basis" the Court held that it did not. Johnson v. Shinseki, No. 10-1785, slip op. at 4 (Vet. App. Mar. 27, 2013) (en banc) (noting that a concurring opinion in Brambley v. Principi, 17 Vet. App. 20, 27 (2003) that there should have been a determination of "whether the appellant's service-connected disabilities as a whole [sic] entitled [a Veteran] to [an extra-schedular rating] under § 3.321(b)(1)" had never been adopted by the Court and concurring opinions are not binding on the Court" (citing Maryland v. Wilson, 519 U.S. 408, 412-13). Stated in other terms, an extra-schedular rating may not be assigned for the cumulative impact of the service-connected disabilities herein at issue. Finally, the Board acknowledges the fact that if the claimant or the record reasonably raises the question of whether the Veteran is unemployable due to the disability for which a higher rating is sought, then part and parcel to that claim for a higher rating is the matter of whether a total rating based on individual unemployability (TDIU) as a result of that disability is warranted. See Rice v. Shinseki, 22 Vet. App. 447 (2009). In this regard, the Board notes the determination by the VA examiner following the most recent examination that while manual labor would be precluded by the service connected right knee and/or left elbow disability, the Veteran would nonetheless be able to work in suitable employment that would allow him to sit and stand as tolerated. There is otherwise no specific allegation that either service connected disability at issue renders the Veteran unable to secure or follow a substantially gainful occupation, and he expressed a willingness at a March 2006 VA psychiatric examination to, after completing additional education, o work as a counselor. As there is no suggestion of actual or effective unemployment due solely to the service connected right knee or left elbow disability, consideration of a TDIU in connection with either higher rating claim on appeal is not warranted. For all the foregoing reasons, the Board concludes that, since October 15, 2005, there is no basis for a rating in excess of 10 percent for the service-connected right knee or left elbow disability. As such, there is no basis for a staged rating, pursuant to Fenderson (cited above), and the claims for higher ratings must be denied. In reaching these conclusions, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the assignment of a higher rating, that doctrine is not for application. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert, 1 Vet. App. at 53-56. ORDER An initial rating in excess of 10 percent for an ACL tear with degenerative changes of the right knee is denied. An initial rating in excess of 10 percent for residuals of a left elbow injury is denied. ____________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs